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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Josephine B. v. State, Dept of Health & Social Services, Office of Children's Services (08/24/2007) sp-6150

Josephine B. v. State, Dept of Health & Social Services, Office of Children's Services (08/24/2007) sp-6150, 174 P3d 217

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


JOSEPHINE B., )
) Supreme Court No. S- 12399
Appellant, )
) Superior Court No. 4FA-05-00058 CN
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH AND ) No. 6150 - August 24, 2007
SOCIAL SERVICES, OFFICE OF )
CHILDRENS SERVICES, )
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Douglas L. Blankenship, Judge.

          Appearances:    Kathleen  Murphy,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for Appellant.  Megan R.
          Webb,  Assistant Attorney General, Anchorage,
          and   Talis  J.  Colberg,  Attorney  General,
          Juneau, for Appellee.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          EASTAUGH, Justice.
I.   INTRODUCTION
          Josephine  B.  appeals  a  superior  court  order  that
adjudicated her daughter Ashley a child in need of aid  under  AS
47.10.011(8) because she had suffered mental injury.  We  affirm.
The  superior  court applied the correct legal standard  and  its
factual findings are not clearly erroneous.
II.  FACTS AND PROCEEDINGS
          Josephine B. lived in Fairbanks with her husband  Jacob
and  three children from her previous marriage: Benjamin, Ashley,
and  Rafe  (born  in  1991, 1992, and 1994,  respectively).1   In
October  2003  Roger A., the childrens biological  father,  filed
with the Office of Childrens Services (OCS) a report of harm that
alleged  that Josephine and Jacob were physically and emotionally
abusing  the children.2  In response, OCS sent two social workers
to  their  home.   During the investigation Josephine  and  Jacob
denied  the  social  workers access  to  the  children.   Because
Josephine  and  Jacob had refused to cooperate  and  because  the
Fairbanks Police Department had indicated that the children  were
seen and there was no evidence of abuse, OCS closed the case.
          In  March  2005 OCS received another report that  Jacob
was  physically and mentally abusing the children, this time from
an  anonymous source.  OCS again sent a social worker to the home
but Jacob prevented him from interviewing the children without  a
court order.  OCS obtained a court order and Jacqueline Swart, an
OCS  social  worker and children services specialist, interviewed
the  children  at a police station in May.  During the  interview
Ashley  was  the only child willing to discuss the conditions  in
the  home  and she denied all of the allegations of harm.   After
the  interview Swart reported that she felt the children had been
coached   not  to  answer  her  questions.   Swart   closed   the
investigation.
          Later that year, Ashley began to sleep over at the home
of  Fran  LoDuca, a family friend, where she helped  LoDuca  with
housework  and babysitting.  On October 6, 2005 Ashley  contacted
social  worker Swart from a telephone at LoDucas house  and  told
Swart  that  almost  all of the allegations  of  harm  that  they
discussed in the May interview were true.  Ashley said  that  she
and  the  other  children  were being  subjected  to  a  military
discipline technique in which the children were forced to hold  a
push-up  position  while  being swatted  with  a  wooden  paddle.
Ashley  also  told  Swart that Jacob was  drinking  almost  every
evening and when he drank he threw bottles and bottle caps at the
children.
          The next day Swart interviewed Ashley at LoDucas house.
Ashley told Swart that she was very fearful and that she did  not
want to go home.  She explained that her brothers were being  hit
almost  every day, that she had recently been hit, and  that  her
brothers had acted in a sexually inappropriate manner toward her.
When LoDuca refused to allow Ashley to return home, Josephine and
Jacob  went  to LoDucas house with a police escort and  retrieved
her.
          On  October 31, 2005 OCS filed a non-emergency petition
for  adjudication of the B. children as children in need of  aid.
A  short  time later, when Josephine was out of the house  on  an
          errand, Ashley telephoned Swart and asked in a panicked tone to
be  removed  from  the home.  When Josephine  returned  from  her
errand, Ashley abruptly hung up.
          After a December hearing the superior court found  that
the  concerns  in the non-emergency petition warranted  emergency
custody  and  therefore  granted OCS  emergency  custody  of  the
children.  Swart then placed the children in an emergency  foster
home  and  filed  an emergency petition for adjudication  of  the
children as children in need of aid.
          Later that month a temporary custody hearing took place
before  Master  Katherine R. Bachelder.  Master  Bachelder  found
that  there  was probable cause to believe the children  were  in
need  of  aid  because their mother and stepfathers  conduct  had
placed  them at substantial risk of mental injury.  This  finding
was  adopted  by  the superior court on January  26,  2006.   The
superior court found that
          the children have been subjected to a chronic
          pervasive  climate of fear in  their  mothers
          home,    and   that   they   were   routinely
          threatened,  yelled  at, shamed,  humiliated,
          verbally  assaulted, bullied  and  physically
          abused.   This  conduct,  described  by   the
          mother  and  stepfather  as  discipline,  has
          created a situation in which the children are
          at  substantial risk for mental injury  as  a
          result   of   the  mother[]  and  stepfathers
          conduct  and the conditions they have created
          in their home.
          
The  superior  court committed the B. children to OCSs  temporary
custody  and  recommended  that OCS  provide  the  children  with
psychological evaluations without delay.
          OCS  referred  the  children to Dr.  Marti  Cranor  for
psychological   evaluations.   Ashley   also   began   individual
counseling sessions with Edward Fitzpatrick, a licensed  clinical
social worker.
          A  combined  adjudication and disposition  hearing  was
held  in  May  2006.   At the conclusion of  the  hearing  Master
Bachelder  found  Ashley to be a child in need of  aid  under  AS
47.10.011(8)  because  she  had  suffered  mental  injury.    The
superior   court  adopted  this  finding  and  issued  an   order
adjudicating Ashley a child in need of aid.  The order also set a
permanency hearing for November 17, 2006.
          Josephine B. appeals the adjudication order.3
III. DISCUSSION
     A.   Standard of Review
          Josephine  B. argues that the superior court  erred  in
adjudicating  Ashley  a  child in need  of  aid  because  it  (1)
misapplied  AS  47.10.011(8)(A)s legal standard  for  determining
whether  a  child has suffered mental injury, and (2) incorrectly
found  that the evidence in this case was sufficient to establish
that Ashley had suffered such an injury.
          Whether  the  superior courts findings  are  consistent
with  the  Child in Need of Aid (CINA) statutes is a question  of
          law.4  We review questions of law using our independent judgment
and  will adopt the rule of law that is most persuasive in  light
of precedent, reason, and policy.5
          Whether  the  evidence  supports  the  superior  courts
finding that Ashley suffered mental injury is a question of fact.
We  review the superior courts factual findings for clear error.6
Clear  error  exists when we are left with a  definite  and  firm
conviction that the superior court has made a mistake.7
     B.   The Superior Court Did Not Err in Adjudicating Ashley a
          Child in Need of Aid.
          
          Alaska  Statute 47.10.011(8)(A) provides that  a  court
may  adjudicate  a  child  in need  of  aid  if  it  finds  by  a
preponderance  of  the  evidence that conduct  by  or  conditions
created  by  the  parent have resulted in mental  injury  to  the
child.   For  CINA adjudication purposes, mental injury  means  a
serious  injury  to the child as evidenced by an  observable  and
substantial  impairment in the childs ability to  function  in  a
developmentally  appropriate manner and  the  existence  of  that
impairment  is  supported by the opinion of  a  qualified  expert
witness.8  The superior court adjudicated Ashley a child in  need
of aid under AS 47.10.011(8)(A) because it found that the conduct
of and conditions created in the home by [Josephine and Jacob B.]
have  resulted  in mental injury to [Ashley] as attested  by  Dr.
Cranor, a qualified expert in psychology.
          1.   The  superior  court  did not misapply  the  legal
               standard  for  determining whether Ashley suffered
               mental injury.
          The  superior  court  held that  Josephine  and  Jacobs
conduct  and  the  conditions they created in their  home  caused
Ashley  to  suffer mental injury, as evidenced by what the  court
termed  an  observable  and substantial impairment  in  [Ashleys]
ability  to  function  in a developmentally  appropriate  manner.
Josephine  argues  that the superior court applied  an  incorrect
legal  standard  for determining whether Ashley  suffered  mental
injury as that term is used in AS 47.10.011(8)(A).
          Josephine  points to examples of mental injuries  found
in  AS 47.10.011(8)(A)s legislative history9 and our decisions in
V.S.B.  v. State,10 Martin N. v. State,11 and Rick P. v. State.12
These  examples,  she  argues, involve gross parental  misconduct
that  has  significantly contributed to extremely serious  mental
conditions  in their children.  She seems to argue that  evidence
of  gross parental misconduct is not merely sufficient to support
a mental injury finding, it is necessary.
          OCS  responds  by noting that the definition  of  child
abuse  and  neglect under the federal Child Abuse and  Prevention
Treatment Act of 1996 (CAPTA) includes serious emotional  harm.13
It  also notes that AS 47.10.011(8) was intended to bring Alaskas
CINA  statutes  into  compliance with CAPTA by  including  mental
injury   as   one   of  the  grounds  for  CINA   jurisdiction.14
Furthermore, OCS notes that although CAPTA itself does not define
emotional harm, the U.S. Department of Health and Human  Services
has defined emotional abuse as a pattern of behavior that impairs
a  childs emotional development or sense of self-worth. This  may
include  constant criticism, threats, or rejection,  as  well  as
withholding love, support, or guidance.15  OCS argues that [t]his
category  of  abuse  does not include only the  most  severe  and
egregious incidents, as Josephine appears to suggest, but  rather
a much wider spectrum of parental conduct and harm to a child.
          We  apply our independent judgment to questions of law,
and  will adopt the rule of law that is most persuasive in  light
of precedent, reason, and policy.16  If the statute is ambiguous,
          we apply a sliding scale of interpretation, where the plainer the
language,  the more convincing contrary legislative history  must
be.17  We interpret Alaska law according to reason, practicality,
and  common  sense,  taking into account the  plain  meaning  and
purpose of the law as well as the intent of the drafters.18
          Alaska  Statute 47.10.011(8)(A) provides that  a  court
may  adjudicate  a  child  in need  of  aid  if  it  finds  by  a
preponderance  of  the  evidence that conduct  by  or  conditions
created  by  the  parent have resulted in mental  injury  to  the
child.   Alaska Statute 47.17.290(9) states that a mental  injury
finding  must be supported by a qualified expert witnesss opinion
that the child has suffered a serious injury, as evidenced by  an
observable  and substantial impairment in the childs  ability  to
function  in  a developmentally appropriate manner.   Because  it
applied the standard from AS 47.17.290(9) almost verbatim to  the
facts  in  this case, the superior court did not use an incorrect
standard.
          Josephines  apparent argument that the  superior  court
must  find gross parental misconduct in order to conclude that  a
child  has  suffered mental injury is not supported by either  AS
47.10.011(8)(A)s legislative history or our caselaw.
          The  legislative history that Josephine  cites  is  not
inconsistent with the plain words of AS 47.17.290(9),  which  the
superior  court  applied correctly.  Our  decisions  in  V.S.B,19
Martin N.,20 and Rick P.,21 also cited by Josephine, are similarly
consistent  with  the text of AS 47.17.290(9).   In  V.S.B.,  the
superior  court  found  that  the appellants  four  children  had
suffered  mental injuries under AS 47.10.011(8)(A).22  We  upheld
that  finding because the appellants four children, described  by
the  superior court judge as  among the most damaged children she
had  seen  in  twenty-five years [of] practicing in the  area  of
childrens law,  had severe mental injuries that were confirmed by
multiple  therapists and social workers.23   In  Martin  N.,  the
superior  court  found that the appellants  pattern  of  domestic
violence  qualified as behavior that would, if continued,  result
in  mental  injury  to  the appellants child.24   We  upheld  the
superior courts finding that the appellants child was in need  of
aid under AS 47.10.011(8).25  In Rick P., the superior court found
that  the  appellant,  by assaulting his  domestic  partners  and
shifting  households frequently, among other things,  had  caused
his child to suffer mental injury under AS 47.10.011(8)(A).26  We
held  that  because  it  was supported by the  testimony  of  two
clinical  psychologists,  the superior  courts  finding  was  not
clearly erroneous.27  In no case, however, have we departed  from
AS  47.17.290(9)s  definition of mental injury when  applying  AS
47.10.011(8)(A).
          Josephines argument that CINA jurisdiction should  only
be  based  on  parental  conduct that causes  substantial  mental
injuries is well-taken.  But that requirement already appears  in
the  text  of  AS 47.17.290(9), which the superior court  applied
almost  verbatim when it adjudicated Ashley a child  in  need  of
aid.   Josephines apparent argument that the superior court erred
by not finding gross parental misconduct is without merit.
          2.   The  superior court did not clearly err in finding
          that Ashley   has  suffered  mental  injury   as   that
               term is defined by AS 47.17.290(9).
               
          Josephine  also  argues  that  the  evidence  does  not
support  the  superior  courts finding  that  Ashley  suffered  a
serious mental injury.  She argues that the evidence merely shows
[s]trict  adherence  to  house rules [and]  physical  discipline,
which  is  insufficient to demonstrate that Ashley  had  suffered
[an]  observable  and substantial impairment that  prevented  her
from  functioning in a developmentally appropriate manner due  to
mental injury.
          Josephine  argues that the evidence shows  that  Ashley
was  attending  school and doing well socially.  She  points  out
that  although Ashley claimed to have experienced dramatic weight
changes, the evidence only demonstrated a very modest weight gain
over  several months.  Josephine contends that while the evidence
might show that Ashley was anxious and very unhappy, it does  not
support  the  superior courts finding that  Ashley  had  suffered
mental injury.
          OCS  responds that the superior court did  not  err  in
finding  that  Ashley  suffered mental  injury  as  a  result  of
Josephine  and Jacobs conduct and the conditions they created  in
their  home,  because  that  finding is  supported  by  extensive
evidence.  OCS points out that Dr. Cranor testified that  Ashleys
lack of a substantial weight change does not alter her opinion of
the  potential  health implications of Ashleys  eating  patterns.
OCS notes that Dr. Cranors primary concern was not Ashleys weight
gain,  but  rather  the level of [Ashleys overall]  symptomology,
which includes unhealthy eating and sleeping habits, an inability
to  concentrate,  and  unhealthy levels  of  anxiety.   OCS  also
observes  that Edward Fitzpatrick testified that Ashleys  ability
to  get good grades does not affect his opinion that she suffered
mental  injury.   OCS  concludes that  the  evidence  shows  that
neither  Ashleys slight weight gain nor her academic  performance
affected  Dr. Cranors or Fitzgeralds overall opinion that  Ashley
suffered  mental injury as a result of conditions in  the  family
home.
          We  review factual findings for clear error.28  Factual
findings are clearly erroneous when, based on the entire  record,
we  are  left with a definite and firm conviction that a  mistake
has been made.29  We give particular deference to the trial courts
factual findings when, as here, they are based primarily on  oral
testimony,  because the trial court, not this court,  judges  the
credibility of witnesses and weighs conflicting evidence.30
          For  CINA  purposes, in order to find that a child  has
suffered  mental  injury the superior court must  find  that  the
child  has  suffered an observable and substantial impairment  in
the  childs  ability to function in a developmentally appropriate
manner.31  Evidence of this impairment must be supported  by  the
opinion  of  a  qualified expert witness.32   In  this  case  the
superior  court found that Ashley has suffered an observable  and
substantial  impairment  in  [her]  ability  to  function  in   a
developmentally appropriate manner, as supported by  the  opinion
of Dr. Cranor, a qualified expert in psychology. The trial courts
          findings are not clearly erroneous.
          At  the  December 2005 temporary custody hearing before
Master  Bachelder, Ashley testified that if the children did  not
do  their  chores they were yelled at or spanked.  She  testified
that in the past the children had been kicked and that Jacob  had
threatened  to  severely beat them.  Ashley also testified  about
Josephine  and  Jacobs disciplinary methods, which included  what
she called the leaning rest, in which the children were forced to
hold a push-up position while being swatted with a wooden paddle.
Ashley  testified  that  she  did not  feel  safe  at  home  when
Josephine  and  Jacob were mad or upset.  Master Bachelder  found
Ashley to be a credible witness.
          Master Bachelder ultimately found, after the conclusion
of  the December 2005 temporary custody hearing and the May  2006
combined  adjudication and disposition hearing, that the children
had been subjected to a chronic, pervasive climate of fear in the
mothers home, and that they were routinely threatened, yelled at,
shamed,  humiliated, verbally assaulted, bullied  and  physically
abused.  As a result, Master Bachelder found Ashley to be a child
in  need  of  aid  under AS 47.10.011(8)(A).  The superior  court
adopted  this finding, stating that Ashley is a child in need  of
aid because she suffered an observable and substantial impairment
in  [her]  ability  to function in a developmentally  appropriate
manner.
          The superior courts finding is supported by Dr. Cranors
testimony.  At the May 2006 combined adjudication and disposition
hearing Dr. Cranor testified:
          Q:   Were   you   able   to   obtain   enough
               information  through your  contact  with
               [Ashley]  and your other information  to
               come to any conclusions about whether or
               not  [Ashley]  has suffered  .  .  .  an
               observable and substantial impairment in
               her    ability   to   function   in    a
               developmentally appropriate manner?
          A:   What  I observed about [Ashley] is  that
               she certainly was exhibiting a number of
               symptoms of anxiety which were above  []
               what    would   be   considered   normal
               reactions,  anxiety reactions,  she  was
               having  some  fairly marked difficulties
               with  her  eating  patterns.   She   was
               having  difficulties with  her  sleeping
               patterns,   she  was  having  difficulty
               concentrating, and all of  those  things
               were  affecting her ability to do fairly
               normal  things  including  complete  her
               home-schooling  schoolwork,  get   along
               with  others, have fun, you know, relax,
               pay attention, learn things.
               . . . .
               And I think . . . you have to understand
               that everybody experiences the things we
               call   anxiety,  the  feeling  we   call
               anxiety   and  when  we   look   at   it
               clinically, we look at [it] in terms  of
               a continuum from what we consider normal
               anxiety.   You know, when a person  goes
               into a new situation that they dont know
               what  to  expect, its normal to  feel  a
               little  anxious because  you  dont  know
               whats going to happen, and it progresses
               then   to  the  kind  of  anxiety   that
               interferes  with  a persons  ability  to
               take  care of their daily living, to  do
               the  tasks  they need to  do,  to  think
               clearly,  and so, you know, it  appeared
               that while [Ashleys] anxiety was related
               to  what was going on in the family,  it
               had  reached  the  point  where  it  was
               somewhat disabling to her, not only just
               in terms of her ability to function, but
               also  the  point where, you know,  there
               might  be  some health implications  for
               it.
               
          Josephine  argues that Dr. Cranors testimony  does  not
support  the  superior  courts finding  because  Ashleys  medical
records  demonstrate that she experienced only  a  modest  weight
gain.  But as OCS points out, Dr. Cranor did not base her opinion
of Ashleys mental health on the notion that Ashley had suffered a
weight  gain.   Instead,  she testified that  Ashley  had  fairly
marked   difficulties  with  her  eating   patterns   that   were
symptomatic of her abnormal levels of anxiety.  According to  Dr.
Cranor,  this anxiety interfered with Ashleys ability to function
in a developmentally appropriate manner.  In light of Dr. Cranors
testimony  in  finding  that Ashley had suffered  serious  mental
injury, the trial courts findings are not clearly erroneous.
IV.  CONCLUSION
          Because  the  superior court applied the CINA  statutes
almost  verbatim to the facts of this case, it  did  not  use  an
incorrect  legal standard when it adjudicated Ashley a  child  in
need  of aid.  Also, because the superior courts factual findings
are  supported  by  Dr. Cranors testimony, as the  CINA  statutes
require, they are not clearly erroneous.  We therefore AFFIRM the
superior courts determination that Ashley was a child in need  of
aid.
_______________________________
     1    We use pseudonyms for all family members.

     2     Some of these facts are taken from the transcripts  of
the  December  2005 temporary custody hearing and  the  May  2006
adjudication and disposition hearing.

     3     Only  the  adjudication order is  challenged  in  this
appeal.   The  adjudication order did not end the  proceeding  or
terminate  parental rights.  An adjudication  order  is  directly
appealable.  CINA Rule 21(a).

     4     Winston  J.  v. State, Dept of Health &  Soc.  Servs.,
Office  of  Childrens  Servs., 134 P.3d 343,  345  (Alaska  2006)
(citation omitted).

     5     Gilbert  M. v. State, 139 P.3d 581, 586 (Alaska  2006)
(quotation & citation omitted).

     6    Winston J., 134 P.3d at 34546 (citation omitted).

     7    Id. (internal quotation omitted).

     8     AS 47.17.290(9).  AS 47.10.990 provides that [i]n this
chapter, unless the context otherwise requires . . . (20)  mental
injury has the meaning given in AS 47.17.290.

     9     Minutes of the House Finance Committee hearing  on  HB
375,  May 2, 1998, testimony of Assistant Attorney General  Susan
Wibker  (Tape  98143,  Side A) (stating that  the  thrust  of  AS
47.10.011(8)(A)s  mental injury protection  was  to  get  at  the
serious emotional harm being done to children).

     10    V.S.B. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 45 P.3d 1198 (Alaska 2002).

     11    Martin N. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50 (Alaska 2003).

     12    Rick P. v. State, Office of Childrens Servs., 109 P.3d
950 (Alaska 2005).

     13    42 U.S.C.  5106g(2) (2007).

     14     See 1998 Inf. Op. Atty Gen. No. 126 (June 3) (HB  375
would  bring  the state into compliance with CAPTA  by  including
mental  injury and substantial risk of mental injury  as  grounds
for CINA jurisdiction.).  See also Minutes of the House Judiciary
Committee  hearing on HB 375, April 23, 1998, testimony  of  Lisa
Torkelson,  Legislative  Assistant to Representative  Fred  Dyson
(Tape  9866,  Side B) ( [E]motional harm in the original  version
was  a  new  term,  with a new definition.   And  we  felt  [that
emotional  harm]  was  a  little broad and  could  be  construed,
possibly, or abused, and so we preferred [mental injury], as long
as [it] met with federal standards.).

     15     U.S.  Department of Health & Human Services, What  Is
Child        Abuse       and       Neglect?       3       (2006),
http://www.childwelfare.gov/pubs/factsheets/whatiscan.pdf.

     16     Young  v.  Embley, 143 P.3d 936,  939  (Alaska  2006)
(quotation omitted).

     17    Id. (internal quotation & citation omitted).

     18    Id. (citation omitted).

     19    V.S.B., 45 P.3d at 1204.

     20    Martin N., 79 P.3d at 55.

     21    Rick P., 109 P.3d at 955-56.

     22    V.S.B., 45 P.3d at 120304.

     23    Id. at 1204.

     24    Martin N., 79 P.3d at 55.

     25    Id.

     26    Rick P., 109 P.3d at 952, 955.

     27    Id. at 95556.

     28     Winston  J. v. State, Dept of Health &  Soc.  Servs.,
Office  of  Childrens Servs., 134 P.3d 343, 34546  (Alaska  2006)
(citation omitted).

     29    Alden H. v. State, Office of Childrens Servs., 108 P.3d
224, 228 (Alaska 2005) (quotation omitted).

     30     In  re  Adoption of A.F.M., 15 P.3d 258, 262  (Alaska
2001).

     31     AS 47.17.290(9).  AS 47.10.990(20) states that mental
injury has the same meaning in the CINA statutes as it does in AS
47.17.290.

     32    AS 47.17.290(9).

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